III. INSTITUTING STRUCTURAL MECHANISMS TO ENSURE GENDER BALANCE AND EXPERTISE
As women have increasingly begun to acquire political power, the international community has acknowledged that their participation in international criminal fora is fundamental, both because it values gender equity as a goal in itself and because women are frequently more motivated than their male counterparts to ensure that gender-based crimes such as rape are investigated and punished. An important achievement of the Women's Caucus during the negotiations was ensuring that the composition of the Court would include women in all of its organs and that women and men with specific expertise in dealing with sexual and gender violence would be included on the Court's staff at all levels.
The Rome Statute. The Rome Statute requires that "fair representation of female and male judges" be "take[n] into account" in the selection process, as well as fair representation of females and males in the selection of staff in all other organs of the Court. 46 It also mandates that the selection of judges and other staff "take into account the need to include" persons "with legal expertise on. . . violence against women or children." 47 Moreover, the Prosecutor is required to "appoint advisers with legal expertise on specific issues, including... sexual and gender violence." 48 Part 4 also provides for the creation of a Victim and Witness Unit within the ICC's Registry to "provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims... and others who are at risk on account of [their] testimony." The unit must "include staff with expertise in trauma, including trauma related to crimes of sexual violence." 49
Recent Experience Confirming the Need for Gender Balance and Expertise. Although these principles of female representation and gender expertise had never before been incorporated explicitly in a treaty forming an international body, the precedents for the adoption of these principles were clear. Building on the Vienna Conference, 50 the Beijing Conference urged governments and intergovernmental organizations to "aim for gender balance when nominating or promoting candidates for judicial and other positions in all relevant international bodies, such as the [ICTY], the [ICTR] and the International Court of Justice, as well as other bodies related to peaceful settlement of disputes." 51 The U.N. General Assembly has echoed these words in its call to all member states to "commit themselves to gender balance" by "creating special mechanisms," including "by presenting and promoting more women candidates" within both national and international bodies and institutions. 52
The ICTY and ICTR are case studies on why it is so crucial to include women as well as men with appropriate expertise in international bodies charged with investigating war and conflict situations. The gradual shift toward taking rape and other sexual crimes seriously and investigating them zealously can be traced to the participation of women in the ICTY and ICTR as investigators, researchers, judges, legal advisors, and prosecutors. 53 In 1993, two of the eleven judges elected by the General Assembly to serve on the ICTY were women 54 - an unprecedented - if still grossly inadequate - step. The two women elected were the only women on the list of 23 candidates. Only after heated political negotiations was a woman from Costa Rica, Elizabeth Odio-Benito, elected over far less qualified male candidates from Latin America. 55
Indeed, Judge Navi Pillay, the only woman judge on the ICTR, was instrumental in questioning witnesses in the Akayesu case and evoking testimony of gross sexual violence, resulting in additional charges being added to the indictment. 56 The sexual violence charged in the amended indictment eventually led to the defendant's conviction for genocide due to those acts, the first time an international tribunal has found that rape and sexual violence can constitute genocide. 57 Judge Pillay observed recently: "Who interprets the law is at least as important as who makes the law, if not more so.... I cannot stress how critical I consider it to be that women are represented and a gender perspective integrated at all levels of the investigation, prosecution, defense, witness protection and judiciary." 58
The tribunals are also two of the first examples of the international community applying other key principles articulated in fora such as the Beijing Conference. In 1995, Chief Prosecutor Richard Goldstone instituted the position of Legal Advisor for Gender-Related Crimes (the Gender Legal Advisor). The Gender Legal Advisor has been instrumental in ensuring the investigation and prosecution of sexual violence crimes despite the legal difficulties in doing so given their inadequate enumeration in the ICTY and ICTR Statutes. 59
ICC Negotiations. The International Law Commission's 1994 draft of the Rome Statute included provisions requiring judges and staff with expertise in criminal law and international law; 60 however, it did not take account of the U.N.'s consensus that the inclusion of women is fundamental in forming new international bodies nor did it focus on the need for gender expertise. In 1996, a proposal of the United States and a joint proposal from Denmark, Finland, Malawi, New Zealand, Norway, and Sweden, proposed adding concepts of gender balance to the criteria for the selection of judges. 61 During the March 1998 Preparatory Committee when the provisions related to composition and administration were debated in detail, the Women's Caucus proposed language to ensure that judges and other ICC staff included individuals with expertise in gender analysis. 62 The draft that emerged from the March PrepCom included bracketed language referring to "gender balance" and "expertise on issues related to sexual and gender violence." 63
At the Rome Treaty Conference, the Women's Caucus faced a struggle to ensure the retention of this language. Middle Eastern delegations, particularly Egypt, Iran, Oman, Syria, and United Arab Emirates, vehemently opposed the inclusion of gender balance and expertise on sexual and gender violence. Delegations fighting to include these concepts had to accept compromise language that replaced "gender balance" with "fair representation of men and women." 64 The failure to use the term "balance," well-accepted in many U.N. documents, was a disappointing signal of continued resistance to women's equality in international institutions. However, the compromise language may have little practical impact, provided states take seriously the obligation to nominate and elect women judges, prosecutors and high-level staff. In addition, "expertise on issues related to sexual and gender violence, violence against children and other matters" was replaced with "legal expertise on specific issues, including, but not limited to, violence against women or children." 65 The loss of the language proposed by the Women's Caucus specifying sexual and gender violence ironically excludes men, who also are victims of sexual violence during wartime, but is still revolutionary for requiring the expertise it does.
IV. SAFEGUARDING THE RIGHTS OF VICTIMS OF SEXUAL AND GENDER VIOLENCE
In every legal system of the world, the investigation and prosecution of sexual and gender violence has been undermined by discriminatory and patriarchal procedural and evidentiary rules as well as law enforcement attitudes and practices. Underlying these rules and practices is the prevailing cultural view that while it is correct for society to formally outlaw rape and other crimes, governmental enforcement of these legal prohibitions threatens the prevailing male-dominated social order and the "private" or domestic sphere of relations between men and women. 66 This attitude has pervaded the international arena as well, 67 and accounts for much of the reason international crimes of violence against women have gone unsanctioned.
The Rome Statute. The Rome Statute is revolutionary because it codifies a mandate for the Court to adopt specific investigative, procedural, and evidentiary mechanisms that are essential to ensure gender justice. The Women's Caucus was able to lobby successfully for inclusion of these provisions using precedents from the rules and decisions of the ICTY and ICTR, as well as recent reforms made in some domestic legal systems. More procedural and evidentiary safeguards related to sexual violence must still be drafted and finalized when the Court's Rules of Procedure and Evidence (the "Rules") are negotiated by ICC signatories at upcoming Preparatory Committee meetings scheduled for 1999. 68 However, the Rome Statute lays the necessary foundations in various provisions.
Article 68 of Part 6 concerns the protection of victims and witnesses and their participation in proceedings. The Court is required to take appropriate measures, including conducting proceedings in camera or allowing the presentation of evidence by electronic means, to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, taking into account such factors as age, gender, health, and the nature of the crime, particularly where the crime involves sexual or gender violence. The same provision permits the views and concerns of victims to be presented and considered at appropriate stages of the proceedings. 69
The protections in Article 68 are echoed in other provisions. Part 5 of the statute, concerning investigation and prosecution, requires the Prosecutor to "take appropriate measures to ensure the effective investigation and prosecution of crimes," and to "respect the interests and personal circumstances of victims and witnesses, including age, gender. . . and health, and take into account the nature of the crimes, in particular where it involves sexual violence, gender violence or violence against children." 70 Similarly, in Part 6, concerning the trial, the Trial Chamber is required to ensure that the trial is conducted showing "due regard for the protection of victims and witnesses." 71 The same provision also requires the Trial Chamber prior to and during trial to "[p]rovide for the protection of confidential information" and "the protection of the accused, witnesses and victims." 72
Article 69 of Part 6, concerning evidence, provides that the Court "may rule on the relevance or admissibility of evidence, taking into account. . . the probative value of the evidence and any prejudice that such evidence may cause. . . to a fair evaluation of the testimony of a witness." 73 Finally, the statute includes a provision that is fundamental to the Court's ability to ensure concrete justice to victims. It enables the Court to award reparations to, or in respect of, victims, including restitution, compensation and rehabilitation, upon request or on its own motion. 74
Precedents for the Inclusion of a Gender Perspective in the Court's Workings. Only in the past few decades have some domestic legal systems begun to enact procedural and evidentiary reforms to ensure that charges of rape, sexual violence and domestic violence are appropriately treated by law enforcement and judicial officials in order to encourage victims to come forward and to better ensure successful prosecution. 75 Following extensive lobbying from women's rights organizations 76 supported by the two female judges on the ICTY, 77 the judges of the ICTY and ICTR adopted important rules of procedure and evidence to protect and counsel victims of sexual crimes and to ensure proper handling of sexual crimes during trial.78 As noted by Gender Legal Advisor Patricia Viseur Sellers, "the Rules [of Procedure and Evidence of the ICTY] offer the strongest evidence of the [ICTY's] specific intent to investigate, prosecute, and adjudicate sexual assaults." 79 For example, Rule 96, related to evidence in sexual assault cases, and its counterpart in the ICTR are revolutionary in their approach to evidence of rape and other sexual crimes. 80 Rule 96 provides that no corroboration of the victim's testimony is required, that consent shall not be allowed as a defense except in limited circumstances, and that no prior sexual conduct of the victim may be introduced. 81
ICC Negotiations. As was the case with every provision related to sexual and gender violence, there was staunch opposition from some delegations, particularly Arab states, regarding special measures of protection for sexual and gender violence. Delegates from these states questioned the need to "single out" sexual and gender violence for any form of special protection over other crimes. Using arguments put forth by the Women's Caucus, a large number of other states countered that it was entirely appropriate to include such protections. They argued that the long history of inadequate treatment of sexual and gender violence committed during armed conflict, as well as the initial failures to properly investigate and prosecute such violence in the former Yugoslavia and Rwanda, demonstrated how essential special measures are. These provisions were also embroiled in the larger debate about the use of the term "gender," as discussed in Section I above. In the end, the vast majority of delegations understood the need to explicitly include mechanisms to ensure that investigations and trials involving sexual and gender crimes are appropriately handled and such mechanisms were included in the Statute.
Toward the end of the negotiations and in connection with Article 68 (protection of victims and witnesses and their participation in the proceedings), some Arab states staged a culturally revealing exercise in semantics whose purpose seemed to be to require the Court to hold proceedings in camera or allow the presentation of evidence by electronic or other means in cases involving sexual violence or children. Such an extreme exception to the requirement of public hearings on grounds of "public morality" was rightly rejected by other delegations, though a presumption favoring such non-public hearings was retained. 82 While a strong provision favoring closed hearings for victims of sexual violence at their request is essential to counteract the continuing culturally induced feelings of humiliation and guilt that often cause such victims to refuse to testify, the effort of the Middle Eastern states was aimed at keeping the "taboo" issue of sexual violence "under wraps." Thus, a blanket secrecy requirement would not only undermine the rights of the accused in some cases, but would perpetuate the negative stereotypes associated with these crimes, undermining society's ongoing effort to punish those who merit punishment - the perpetrators - and remove the veil of shamefulness from the victim. In some cases, a victim may prefer to testify publicly, exposing the horror of what she suffered as a step forward in her own healing process.
Conclusion
The integration of gender concerns into the Rome Statute is a concrete indication of how far the international women's human rights movement has come. The inclusion of the specific provisions discussed herein reflects a mainstreaming of women's rights into the normative structures of international humanitarian law, a body of law that had previously marginalized women's rights. In the years leading up to the Rome Treaty Conference, the political will to address the heinous crimes perpetrated against women during armed conflict had begun to build among the great majority of nations. The Women's Caucus was able to exert pressure through its members' presence as NGO observers during the treaty negotiations as well as through national-level supporters lobbying government officials at home. Yet the fierce opposition by a few government and NGO delegations in Rome to the Women's Caucus agenda - in the face of countless recent and historical examples of women being systematically subjected to rape, forced pregnancy and other forms of atrocious gender violence during wartime - suggests that future progress for gender justice should not be taken for granted.
No treaty or court judgment can remedy the suffering of wartime victims of rape, forced pregnancy, and other sexual violence, nor undo society's gender constructs that so cruelly multiply their suffering to include shame and guilt. Yet the codification of a mandate to end impunity for these acts is a significant step in the right direction. It was high time that such crimes cease to be regarded as "inevitable by-products" of war and receive the serious attention that they deserve.
As just two of the many supporters of the Women's Caucus, the authors would like to recognize all of the women and men around the world that contributed to the success of the Women's Caucus, including the government delegates who supported the goal of gender justice. We thank Alison-Maria Bartolone for her assistance with this article.
Ashcroft Strikes Out
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